As a Testator, you are not going to be around to put the record
straight on your ability to make your Will. It may be obvious
to you and to the lawyer drafting your Will that you are still in
possession of your faculties, but if you are unwell, or perhaps
choosing to act in an arbitrary fashion, it will be important to
leave sufficient evidence of your mental capacity to defeat any
potential challenge to your wishes being carried out after your
Court challenges on Capacity, Knowledge and Approval
Elsewhere on this site we have looked at a case from the Court
of Appeal in Hong Kong, where medical evidence organized by the
Solicitor drafting the Will was largely ignored because the doctor
had failed to keep a contemporaneous note of his examination.
If other professionals could not assess the quality of the
examination, the Court could not verify that it had been carried
out properly. Other cases this year in the English Courts, up
to the Court of Appeal, have looked at capacity and medical
evidence, and how much the Testator knew the effect of what he or
she was doing by the Will, and approved of the effect. Rather
than review what went wrong, here we look at some steps that you
should consider taking if there is any likelihood your wishes may
So what is "Testamentary capacity"?
The test of capacity is set out in an English law case from
1870, Banks v Goodfellow and has four parts. A
(1) understand the nature of what he is doing and its
(2) understand the extent of the property of which he is
(3) understand and appreciate any claims on him which he should
(4) in approaching (3) he should not be subject to a disorder of
the mind which would influence his decision such that he makes a
disposition which he would not otherwise have made.
When might you need to prove it?
If you have been ill, or on medication which might affect your
ability to understand as well as you once did, if there are signs
that your memory is failing, or something (say a bereavement) has
profoundly shocked you or clouded your judgment, then you may need
to have your legal professional look at getting a doctor to make an
assessment of your mental ability, and provide a certificate that
you still have what it takes. You may not want to do this out
of concern for your welfare (no one would want a doctor to find
they are incapable) or because you do not see the value in the
expense. There is no hard and fast rule, and if your Will is
straightforward then even if you are not entirely yourself, it may
not be necessary. But seek the advice of a trusted legal
professional before you dismiss the idea.
The evidence of an experienced lawyer that his or her client had
the required capacity at the time the Will was drafted, drawn,
executed and witnessed can be persuasive, but it does not guarantee
that the Courts will find that you were capable. It will
certainly help if the Will is challenged simply on the basis of
restrospective medical evidence from doctors who never met you, but
a contemporaneous medical examination that is properly recorded is
stronger. When put in the same room as the Testator, even
experienced lawyers cannot be relied upon to judge mental capacity
as well as a doctor.
Friends and family
Any attempt to test for mental capacity is bound to be fraught
with problems – some people suffering with dementia may be
able to appear capable to friends and members of their family in
short bursts of normal conversation. That does not mean that
they could meet the requirements of Banks v Goodfellow as
to the nature and effect of their actions, or as to their
obligations. Others may drift from capacity to incapacity
from day to day, and strong evidence would be needed to show that
the Testator had capacity at the time the Will was executed.
Disorder of the mind
Medical evidence, properly prepared is particularly important
if, on the face of it, the Will seems to be irrational.
Leaving everything to the cat's home may seem like a fun
threat, but if it means family members are left out of the Will
entirely, then the Will is likely to be challenged. Without
medical evidence or evidence on the face of the Will that you are
not suffering from "a disorder of the mind" under limb 4
of Banks v Goodfellow, it will be hard for the cat's
home to prove that you acted rationally.
Do it right
The best approach is to get a lawyer to draft your Will and
advise you whether you are likely to need any medical evidence of
your capacity. The point of a Will is that it disposes of
your property in the way you wanted. It would be a shame to
see your wishes set aside - and let the pussy cats go cold and
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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My friend was married to a Muslim man and they had a daughter together before he divorced her. He recently passed away, leaving another daughter from his first wife, whom he divorced before marrying my friend.
On 12 April 2016 the States of Jersey voted to update the Island's customary law and statutory rules governing the administration of property belonging to children.
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